The Reporter
Brandon, Pittsford, Proctor, West Rutland
Wednesday, May 21, 2008

Officials, public weigh in on Omya waste permit
Ry LEE J. KAHRS

PITTSFORD - A public hearing on Omya's interim solid waste disposal certification was punctuated by comments from a state employee who said the permit and the process leading to it are illegal.

But Pittsford officials stood in stark contrast, saying Omya has been unfairly burdened by changes in state regulations, and that the calcium bicarbonate* mining company is an important local business that should be protected.

About 25 people attended the hearing, led by Dennis Fekert, acting chief of certification and compliance with the state's waste management division, and Dennis* "Buzz" Surwilo. a staffer in the waste manacement technical division.

At issue is the draft interim certification of Omya's Florence facility as a solid waste disposal site. The waste, or tailings, are a byproduct of the calcium bicarbonate* production process, and are currently stored in old, unlined quarries.  The tailings consist of naturally occurring minerals that have been treated with chemicals and removed from the raw ore during the production process.  

Omya is planning to build a new tailings facility at their Florence plant.  In November 2007 the company received Act 250 approval for that facility, which would be located at their Verpol plant in Florence.

In the meantime, the state says the Omya plant must have interim certification as they complete the research, planning, construction, installation and operation of the new tailings facility.

The agency of natural resources has written a draft interim certification, but John Brabant, an environmental analyst with the state waste management division, said the certification is misguided, because the state has ignored statute.

"The path taken to this interim certification is not only the wrong path, it is absolutely illegal," Brabant said.

Armed with a copy of the state statues, Brabant said the fact that the Omya plant has had environmental violations disqualifies the company from being entitled to certification.  He said the background review requirement is missing on page five of the interim certification under a findings section.  This section requires the state to consider disqualifying offenses for certification.  The applicant can be disqualified from certification if they have committed an number of crimes or "have committed more than one violation of environmental statutes."

But the certification does address that very statute on the next page under a separate heading for background checks, acknowledging that Omya disclosed five environmental violations.  It also says the state has the right to determine whether an applicant with disqualifying criteria has changed its ways, which the state says Omya has.

According to the certification, Omya has developed an "Integrated Contingency Plan," changed control systems, done additional staff training, improved recordkeeping, and complied with corrective measure requirements.

"The Secretary finds that Omya successfully demonstrated rehabilitation," the certification concludes.

Brabant also said that the state passed a law saying that, after 1991, no landfills shall be unlined, and that Omya has been operating without a permit for three years and did not file for a closure extension, as required by statute.

"This thing's illegal, and the state has spent untold dollars on it," Brabant said angrily.  "We stand on our heads and twist the words around and lie, yes, lie, and ignore half of the freaking statutes.  This is yet another embarrassment of this agency as an employee here."

Brabant said another statute requires a stay in the activation of a permit for a term of non-compliance, and he said no stay has been issued.

"It took work to ignore all these parts of law," Brabant said.  "It's just amazing."

Omya's Vice-President of Environmental and External Affairs Jim Hamilton said he believes the company is in compliance and will continue to work with the state and local residents in handling the waste issue.

"We think the interim certification is appropriate in the regulatory process to manage the tailings," Hamilton said.  "We believe we will remain in compliance, and we look forward to working amicably with the neighbors and the Agency of Natural Resources in this process."

Omya and waste management have been going around and around on this certification since 2002 when Omya requested an exemption from the state's solid waste management rules.  The company received that exemption briefly, until a few months later when a neighbor of the plant asked the state to reconsider.  Over the last six years, there has been a steady and slow exchange of materials, submissions, determinations, and comments between the state and Omya regarding the certification.  

Two citizen groups, Vermonters for a Clean Environment (VCA*), and Residents Concerned about Omya (RCAO*), have been fighting the certification since 2003.  They claim the threat of groundwater contamination from the tailings is significant and has not been properly addressed.  They have also complained of noise and dust issues at the plant.

The state's technical review of Omya's tailings disposal was delayed in 2005 when Act 65 was passed.  The legislation required Omya to complete a study of the health and environmental effects of the company's mineral processing.  The results of the report, known as the Section 5 Study, were submitted to the legislature on Feb. 19, 2008.

The findings were as follows:
--Groundwater on-site is contaminated in limited ways with AEEA (aminoethylethanolamine, a component of flotation reagent), manganese, iron and possibly arsenic.
--A spring on private property near one of the Omya plants in Florence contains small amounts of two Verpol-related chemicals, AEEA and stearic acid, but is not and has not been used for drinking water -- exactly how these contaminants reach the spring is unclear.
--Drinking water wells have not been contaminated by any Verpol-related chemicals, but three private wells and the Florence public well have ben found to contain perchlorate (once used in blasting at the Hogback Quarry) at concentrations much smaller than the state drinking water limit.
--Smith Pond shows no signs of chemical or biological impacts due to Omya's operations.
--Air quality in the neighborhood was not found to be detectably effected by dust blown directly from the site, but air along and near the truck route to and from the site was found to contain more dust than air nearby but less heavily trafficked locations.

The findings conclude with the following statement:  "These data and our analyses indicate no current threat to human health or the environment.  Further, for reasons explained below, future threats appear minimal.  Again, we cannot assess risks that may have occurred in the past, but left no trace."

Waste management employee Surwilo said that because there were non-compliance issues with the Verpol plant in the past, interim solid waste certification is "the only regulatory option" for Omya right now.

"The key finding is that they need time to develop an alternative (tailings) facility," Surwilo said.

What alarmed Pittsford officials was the language in the interim certification about the closure and post-closure requirements for the plant.  Surwilo said the interim certification includes requirements for incremental closure of existing tailings management areas (TMAs) as they start to reach capacity over the next two years.  The Dolomite TMA shall be closed by 2009, and the Kane and Drake TMA shall be closed by 2010.  The state is also requiring a financial commitment from Omya for closure and post-closure expenses to the tune of almost $11 million.

Once they are closed, the TMAs will be covered with nine inches of topsoil to prevent human contact as a precaution.
Surwilo did say that the closure timeframe for the Dolomite TMA is not realistic.

"In all likelihood, the facility will not be closed by the end of the two-year period," he said.  "There is the possibility of a second year permit in the future."

That is another sticking point.  Because the plant is only entitled to interim certification due to past environmental violations, the company must apply for re-certification every two years.

Design and siting shortfalls also prohibit Omya from getting full certification.  Those problems are as follows:  Omya does not meet minimum isolation distance to seasonal high water table; does not meet minimum isolation distance to bedrock; does not meet minimum isolation distance to a property line; lack of a liner or leachate collection system in the TMAs; and does not have maximum finished slope grades.

Annette Smith with Vermonters for a Clean Environment (VCE) said the fact that Omya is in non-compliance with so many siting and design factors should negate the interim certification because there is no way to become compliant in order to get a standard permit.

"There is no transition here, no interim between non-compliance and compliance," she said.
Smith also took issue with the state's finding that Omya is in compliance with the Groundwater Protection Rule and does not pose a risk to the public health.

"Omya has contaminated the groundwater under its site," Smith said.  "Omya is not in compliance with the State of Vermont's goals and policies to protect groundwater.  If this permit is issued, Omya will be able to fill up the site.  One million tons of water* will be added to this community's aquifer."

Smith vowed that if the certification is issued, it will be appealed by VCE.*

On the flipside, despite Omya's non-compliance issues and siting deficiencies, the state found that the Omya plant "is necessary and will result in some public benefit."

Also, the state said treating and storing the tailings on-site rather than trucking it off-site is good, because trucking it would result in adverse noise and air pollution.  It was also determined that there is no alternative means of disposal.

"The continued operation of the Verpol plant is economically beneficial to the Rutland Region and Vermont as a whole," the certification reads.

Pittsford officials agree.  Pittsford Planning Commission Chair Don Nickless said the state has treated Omya unfairly by changing the rules regarding what constitutes solid waste and forcing the company to comply.  He said Omya's decision to move 60 administrative jobs to a Cincinnati suburb last year could be a sign of things to come.

"Something bothers me," Nickless said.  "They've already shipped 60 jobs out of state.  What kind of message does it send to businesses?  It sends a terrible message.  Yes, there are chemical issues, but we're not going to attract businesses and jobs when they see what we did to Omya.  That really concerns me."

Omya employs roughly 300 people at the Florence plant* and pays about 30 percent of the total town and highway taxes collected in Pittsford each year.  According to town manager Kathleen Ramsay, Omya paid $462,000 in taxes to the town last year out of $1.6 million in total town and highway taxes collected.

Pittsford Selectman David Markowski said having Omya renew the permit every two years is not business-friendly.
"That's pretty discouraging for any business or any community that depends on this business," he said.  "It's hard that every two years there's an opportunity for the closure of something.  From a business standpoint, I'd hate to see them leave because some bureaucracy is intent on seeing them leave."

But Surwilo said the TMAs are reaching capacity, and that's the reason for closing those areas.

"There's no intention of pulling the rug out from underneath this company," he said.

The public has until May 29 to submit comments to the state waste management division of the Agency of Natural resources regarding the interim solid waste certification for the Omya plant.  Comments may be sent to:  VT DEC, Waste Management Division, 103 S. Main St., West Office Building, Waterbury VT  05671.